Thursday, October 01, 2009

If implemented it would spell the end to Ukraine as a democratic state. Instead of being a democracy Ukraine would become a Presidential autocracy.

Holding an open public debate where Yushchenko's version of constitutioanl reform is the only item up for discussion is not the way to go about seeking reform

Yushchenko can not legally change Ukraine's Constitution without the support of the Parliament.

Ukraine's Constitution can not be amended before the next Presidential election.

The Parliament is the only body that can amend Ukraine's Constitution.

In accordance with Chapter XIII: Ukraine's Constitution can only be amended with the consent of no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine.

In addition amendments to Chapter I — "General Principles," Chapter III — "Elections. Referendum," and Chapter XIII — "Introducing Amendments to the Constitution of Ukraine," can only be amended by the parliament of Ukraine on the condition that it is also approved by an All-Ukrainian referendum designated by the President of Ukraine.

Any proposed Constitutional amendment also requires review by Ukraine's Constitutional Court and can only be finally agreed to at the next regular session of the Parliament following the date in which the Parliament first gave its consent. The next regular session is not until February 2010 and it is highly unlikely that Ukraine's Parliament will agree to any amendments prior to the Presidential elections in January 2010. The earliest any reforms can be considered would be September next year . So what's the rush and should there not be other alternative options?

Yushchenko knows he can not change the Constitution without the support of the parliament. So why is he pushing his reform package? The reason is simple Yushchenko hopes to sell the notion that his proposed Constitutional reforms are the solution to Ukraine's problems. They are not.

Yushchenko versus Yatseniuk

Yushchenko currently has less then 4% support. His main rival at this stage is Arseniy Yatseniuk, Yushchenko needs to boost his support to such an extent that he can match or prevail on Yatseniuk to withdraw from the race. Yushchenko hopes that Yatseniuk's support will transfer across and that the combined vote will put him ahead Yulia Tymoshenko and progress into the final face-off against Yanukovych.

As long as Yatseniuk and Yushchenko run against each other neither will progress to the final second ballot. Each one can only survive if the other withdraws.

Parliament versus President

Yushchenko seeks to play off the Parliament against the President in the hope that he will attract enough support from those who want to see Ukraine have a strong President. The problem is Yushchenko is not a strong President and he will most likely not be elected to enjoy the powers he now seeks. The powers he advocates will be invested in who ever wins the 2010 election.

So Yushchenko is playing a game of Russian roulette and he is hoping that the battle between the President and the Parliament will set him aside and give him a lift up. It's a big gamble and one that is built of straw. This strategy requires the country to come close to breaking point and the people of Ukraine being fooled into thinking that Yushchenko's proposed reforms are the solution to Ukraine's problems.

Proposed reform would exacerbate the problems and divisions in Ukraine.

If anything Yushchenko's proposed reform would exacerbate the problems and divisions in Ukraine. Yushchenko's reforms are not democratic and will not resolve the conflict and divisions between the Office of the President and then Parliament. If implemented they would bring Ukraine to closer to breaking point and eventually possible civil war.

Presidential autocracy versus democracy

Yushchenko wants Ukraine to take a backward step and become a Presidential autocracy where the President would have absolute power and absolute control. the president would have absolute power over the courts, the government and the parliament. The parliament would have limited authority and if it is not to the President's liking he can dismiss the parliament without limitation or just cause.

Yushchenko's undemocratic Senate

Yushchenko's proposed senate is the only safeguard but it will not be a democratic. The Senate has an inbuilt bias towards Western Ukraine at the expense of Eastern and Southern Ukraine. The Senate's mandate will be based on Ukraine's regional Oblasts with each Senatorial region electing the same number of Senators. Zakapattia with just over 300,000 constituents will elect three senators the same as Donetsk with 2.6 million constituents. The undemocratic representation will create cause for resentment not unity.

Yushchenko's Senate can not be held accountable as it can not be dismissed. One third of the Senate will face election every two years with the same set of voters electing all three Senators by a first-past-the-post voting system. It is easy to see resentment escalating to the point where the system will be denounced outright by Eastern and Southern Ukraine who will feel cheated and denied a fair equal right of representation.

President's impeachment impossible

The fairness of the proposed senate is further diminished by the fact that the senate is the only body that can seek to impeach the president, made even harder by the requirement that the President can only be impeached if found to have intentionally committed a crime. Given that the President holds absolute immunity the chances of the President being convicted of a crime is virtually impossible short of determined civil unrest and a peoples uprising.

News in review

Parliamentary Assembly Council of Europe (PACE) Explanatory Report calls on Ukraine to adopt a Full Parliamentary System in line with other European States

"It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."

Constitutional Court challenge

The authority of the President to dismiss Ukraine's parliament has been challenged in Ukraine's Constitutional Court amidst concern that the President's actions are unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.

On April 19 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
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The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

On April 30, on the eve of the Constitutional Court's ruling on the legality of the president's decree dismissing Ukraine's parliament, President Yushchenko, in defiance of the PACE resolution of April 19 intervened in the operation of Ukraine's Constitutional Court by summarily dismissing two Constitutional Court Judges, Syuzanna Stanik and Valeriy Pshenychnyy, for allegations of "oath treason." His move was later overturned by the Constitutional Court and the judges were returned by a temporary restraining order issued by the court.

Following the president's intervention the Constitutional Court still has not ruled on the question of legality of the president's actions.

Stepan Havrsh, the President's appointee to the Constitutional Court, in prejudgment of the courts decision and without authorization from the Court itself, commented in an interview published on July 24

“ I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections... How the court can agree to consider such a petition under such conditions.”

Olexander Lavrynovych, Ukrainian Minister for Justice, in an interview published on Aug 3 is quoted as saying

“ According to the standards of the Constitution and the laws of Ukraine, these elections should have been recognized invalid already today. But we understand that we speak about the State and about what will happen further in this country. As we've understood, political agreements substitute for the law, ... The situation has been led to the limit, where there are no possibilities to follow all legal norms.